Ref. Ares(2019)2743373 - 23/04/2019
DIRECTORATE-GENERAL FOR COMMUNICATIONS NETWORKS, CONTENT AND
Brussels, 23rd April 2019
Ms Kirsten Fiedler
European Digital Rights
Rue Belliard 12
Belgium Advanced copy:
[FOI #6397 email]
REGISTERED LETTER WITH ACKNOWLEDGEMENT OF RECEIPT
Your application for access to documents – GestDem 2019/0866
Dear Ms Fiedler,
We refer to your e-mail dated 14/02/2019 in which you make a request for access to
documents, registered on the same day under the above-mentioned reference number. We
also refer to our email dated 05/03/2019, our reference Ares(2019)1493885, whereby we
informed you that the time limit for handling your application was extended by 15
working days pursuant to Article 7(3) of Regulation (EC) No 1049/2001 on public access
to documents (hereinafter ‘Regulation 1049/2001’).
1. SCOPE OF YOUR APPLICATION
In your application, you requested:
“- all communication sent to and received from Members States and their National
Regulatory Authorities to prepare the implementation report of the Regulation (EU)
2015/2120 (Open Internet Regulation) which is due on 30 April 2019
- all communication sent to and received from Member States and National Regulatory
Authorities to follow upon annual reporting obligations under the Regulation (EU)
2015/2120 (Open Internet Regulation).”
2. EXPLANATIONS ABOUT THE CONTEXT
As of principle, the national regulatory authorities provide their reports to the Body of
European Regulators for Electronic Communications (BEREC). BEREC then sends the
country reports to the European Commission for publication on the following website:
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
BEREC also published an Opinion on the evaluation of the application of the Open
Internet Regulation, which can be accessed through the following link:
Please note that these documents were made available to the Commission by BEREC.
They are disclosed for information only. They do not reflect the position of the
Commission and cannot be quoted as such.
Follow-up discussions concerning ongoing investigations/proceedings take place in the
framework of BEREC Open Internet Expert Working Group. Therefore, we would kindly
invite you to contact BEREC for any further information:
3. DOCUMENTS FALLING WITHIN THE SCOPE OF THE REQUEST
Nevertheless, we have identified 82 documents, which are email exchanges between
national regulatory authorities and an external contractor in the context of the preparation
of a study report on the implementation of the Open Internet Regulation. The contractor
wrote one chapter on each country and shared them with each national regulatory
authority, asking them to check the facts. The European Commission was in copy of
these email exchanges.
4. ASSESSMENT UNDER REGULATION 1049/2001
(i) Protection of the ongoing decision-making process
The first subparagraph of Article 4(3) of Regulation 1049/2001 provides that ‘access to a
document, drawn up by an institution for internal use or received by an institution, which
relates to a matter where the decision has not been taken by the institution, shall be
refused if disclosure of the document would seriously undermine the institutions'
decision-making process, unless there is an overriding public interest in disclosure’.
The identified emails were sent and received in the context of the preparatory work for a
study, which is not finalised yet but is supposed to be published by the end of the month.
They relate to a matter where a decision has not been taken, pursuant to the first
subparagraph of Article 4(3).
The study falls within the purely administrative functions of the Commission.
Consequently, the interest of the public in obtaining access to a document pursuant to the
principle of transparency, does not carry the same weight in the case of a document
drawn up in an administrative procedure intended to establish an informative document,
as in the case of a document relating to a procedure in which the Community institution
acts in its capacity as legislator1.
1 For a similar case, see Judgment of the Court of first Instance of 9 September 2008 in case T-
403/05, MyTravel v Commission, para. 49
Disclosing parts of the non-finalised study could be misleading for the public, since the
current conclusions of the study are not definitive.
Furthermore, disclosing the study before the publication of implementation report of the
Regulation (EU) 2015/2120 (Open Internet Regulation) and so close to the due date,
which is 30 April 2019, would have the effect of sending out confusing information. The
content of the study could be perceived as reflecting the official position of the European
Commission on the implementation of the Open Internet Directive, even though the
Commission will express its position only in the implementation report due on 30 April
(ii) Protection of the privacy and integrity of the individual
Pursuant to Article 4(1)(b) of Regulation 1049/2001, access to a document has to be
refused if its disclosure would undermine ‘the protection of privacy and the integrity of
the individual, in particular in accordance with European Union legislation regarding the
protection of personal data’.
The applicable EU legislation in this field is Regulation (EC) No 2018/1725 of the
European Parliament and of the Council of 23 October 2018 on the protection of natural
persons with regard to the processing of personal data by the Union institutions, bodies,
offices and agencies and on the free movement of such data, and repealing Regulation
(EC) No 45/2001 and Decision No 1247/2002/EC (‘Regulation 2018/1725’).
Parts of the identified documents contain personal data (names, contact details and
comments) of Commission staff and third parties.
Article 3(1) of Regulation 2018/1725 provides that personal data ‘means any information
relating to an identified or identifiable natural person […]’. The Court of Justice has
specified that any information, which by reason of its content, purpose or effect, is linked
to a particular person is to be considered as personal data2.
In its judgment in Case C-28/08 P (Bavarian Lager), the Court of Justice ruled that when
a request is made for access to documents containing personal data, Regulation
2018/1725 becomes fully applicable.
Pursuant to Article 9(1)(b) of Regulation 2018/1725, personal data shall only be
transmitted to recipients established in the Union other than Union institutions and bodies
if ‘[t]he recipient establishes that it is necessary to have the data transmitted for a
specific purpose in the public interest and the controller, where there is any reason to
assume that the data subject’s legitimate interests might be prejudiced, establishes that it
is proportionate to transmit the personal data for that specific purpose after having
demonstrably weighed the various competing interests’.
Only if these conditions are fulfilled and the processing constitutes lawful processing in
accordance with the requirements of Article 5 of Regulation 2018/1725, can the
transmission of personal data occur.
According to Article 9(1)(b) of Regulation 2018/1725, the European Commission has to
examine the further conditions for a lawful processing of personal data only if the first
2 Judgment of the Court of Justice of the European Union of 20 December 2017 in Case C-434/16, Peter
Nowak v Data Protection Commissioner, request for a preliminary ruling, paragraphs 33-35
condition is fulfilled, namely if the recipient has established that it is necessary to have
the data transmitted for a specific purpose in the public interest.
In your request, you explicitly mention that you request access to anonymised
information. Therefore, the European Commission does not have to examine whether
there is a reason to assume that the data subject’s legitimate interests might be
We have considered whether partial access could be granted to the documents requested.
However, the remaining parts of the emails after having expunged the confidential
information would be meaningless.
5. OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exception laid down in the first subparagraph of Article 4(3) Regulation 1049/2001
apply, unless there is an overriding public interest in the disclosure of the documents.
Such an interest must, firstly, be a public interest and, secondly, outweigh the harm
caused by disclosure.
Insofar as the study is expected to be published soon, we have not been able to identify
such an overriding public interest in disclosing the identified documents at this stage.
6. POSSIBILITY OF CONFIRMATORY APPLICATION
In accordance with Article 7(2) of Regulation 1049/2001, you are entitled to make a
confirmatory application requesting the Commission to review the above positions.
Such a confirmatory application should be addressed within 15 working days upon
receipt of this letter to the Secretary-General of the Commission at the following address:
Transparency, Document Management & Access to Documents (SG.C.1)
or by email to: [DG CNECT request email]
Electronically signed on 16/04/2019 16:07 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563